The NSA, FISA, And The Magical, Imaginary, Benign Presidency
I’ve been trying for days now to collect my thoughts on the outrage du jour. I’m referring, of course, to last week’s revelations about the Obama Administration’s surveillance activities. On Wednesday, we learned that the National Security Agency had obtained an order from the Foreign Intelligence Surveillance Court, which, as Mother Jones’s David Corn reported, “compel[led] [a] Verizon [subsidiary] to give the NSA what’s known as ‘metadata,’ such as the time, length, and location of calls—not the customer’s identity.” Then, on Thursday came news of the Administration’s data-mining program known as “PRISM,” which Bob Cesca explains in some detail here.
I suppose the easiest and most accurate way to respond to the whole matter is to say: That’s awful. The government shouldn’t be doing that. But lawyers don’t get paid to give two-sentence responses, and so I won’t.
When a story like this breaks, the first thing people tend to do is to lash out at Pres. Obama, and that’s understandable. The buck stops with him, after all. But if anyone cares about, you know, fairness, the truth is there’s plenty of blame to go around.
Of course, all of this began under the Bush Administration with the passage of the USA PATRIOT Act and Bush’s attempt to skirt the requirements of the Foreign Intelligence Surveillance Act by intercepting communications without a FISA court order. And initially, the courts rejected the Bush approach.
Striking down Pres. Bush’s warrantless wiretapping in contravention of FISA, Judge Anna Diggs Taylor of the United States District Court for the Eastern District of Michigan wrote:
In enacting FISA, Congress made numerous concessions to stated executive needs. They include delaying the applications for warrants until after surveillance has begun for several types of exigencies, reducing the probable cause requirement to a less stringent standard, provision of a single court of judicial experts, and extension of the duration of approved wiretaps from thirty days (under Title III [of the Omnibus Crime Control and Safe Streets Act of 1968]) to a ninety day term.
All of the above Congressional concessions to Executive need and to the exigencies of our present situation as a people, however, have been futile. The wiretapping program here in litigation has undisputedly been continued for at least five years, it has undisputedly been implemented without regard to FISA and of course the more stringent standards of Title III, and obviously in violation of the Fourth Amendment.
American Civil Liberties Union, et al. v. National Security Administration/Central Security Service, et al., No. 06 CV 10204 (U.S. Dist. Ct. ED MI, Aug. 17, 2006) slip op. at 30-31 (.pdf file).
Consequently, Judge Taylor ruled that Pres. Bush’s program violated both FISA and the Fourth Amendment, and issued an injunction against intercepting telephone calls other than in accordance with FISA. However, she dismissed the balance of the plaintiffs’ claims relating to the Bush Administration’s broad data-mining program, “because litigation of that claim would require violation of [the government’s] state secrets privilege.” Id. at 42.
The matter didn’t end there, however. The Bush Administration appealed Judge Taylor’s injunction to the U.S. Court of Appeals for the Sixth Circuit, where the case was thrown out in its entirety on the grounds that the plaintiffs–the ACLU and several other organizations, including the Council On American-Islamic Relations and the National Association of Criminal Defense Lawyers–lacked standing to challenge the government’s actions. See American Civil Liberties Union, et al. v. National Security Agency, et al., Nos. 06-2095/2140 (6th Cir. July 6, 2007).
Thereafter, Congress passed the FISA Amendments Act of 2008, effectively legalizing the Bush Administration’s program of intercepting certain kinds of telecommunications and other data without prior court orders, but with certain minimal procedural protections. Unsurprisingly, the Obama Administration has cited FISA Section 702, which was added in the 2008 Amendments, as the legal basis for PRISM.
So, this is where we are. Both the court system and Congress had opportunities to rein in the executive branch’s ability to intercept telephone and internet communications. Both the court system and Congress whiffed. And so, it appears, what the President has done–as odious as it may be–is legal.
Which is why the present fixation on the left with Pres. Obama, individually, is confounding. Even if Pres. Obama, out of the kindness of his heart, refrained from using powers that Congress gave him and that the courts failed to check . . . those powers would still exist. FISA, as amended in 2008 and renewed from time to time, would still permit this president–and the next, and the next, and the next–to obtain massive quantities of data we don’t want the government to have. And you can bet the farm that even if this one refrains from gathering that information, the next one won’t.
It’s not that I like what the president is doing, because I don’t. It’s that our civil liberties should not depend on a magical, benign president who elects to refrain from using legal means to gather information we don’t want the government to gather. Because that president doesn’t exist, has never existed, and will never exist.
So, the focus should be less on Pres. Obama vs. civil liberties and more on what can Congress do to rein in the executive branch and thereby fix the problem. If, you know, you really want to fix the problem.